IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE B KRISHNA MOHAN AND HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA —VIL miscellaneous appeal NO: 676 .683 & 684 OF 2024 CIVIL MISCELLANEOUS APPEAL NO: 676 OF 2n?4 Appeal Under Order 43 Rule 1 of CPC. against the order of the Judge. Family Court - cum - V Additional District Judge, Tirupati. passed in EA.No.383/2022 in EA. No. 140/2024 in OS.No.215/2011 dated 16.10.2024 Between: EP.No.26/2017 in A Venkata Subbaiah, S/o. A. Venkata Subbaiah, Hindu, aged about 51 years, presently residing at Flat No. 108, 1st Floor, Sri Radha Govinda Residency, Upadhyaya Nagar, Tirupati Post & Town, Tirupati District. ...Appellant AND 1. Vivid Hotels And Resorts (Pvt) Limited, Rep. by its Managing Director, Konda Radhakrishna, S/o. Konda Lakshmaiah, aged about 62 business. Flat No.2, Sravanthi Apartments, Mogalarajapauram Road Vijayawada-10, Krishna District, A.P. (Decree Holder) years. 1 2. Kanchana Roopa Viswanath, S/o. Kanchana Subbanna, Hindu, aged about 50 years, residing at Flat No. 304, B-Block, Swetha Residency, bearing D. No. 18-1-137, Railway Colony Extension, Tirupati Post And Town, Tirupati District. (Judgment Debtor). ...Respondents lA NO: 1 OF 2024 Petition under Section 151 CPC & under order 41 Rule 5 of CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in EP.No.26/2017 on the file of the Judge, Family Court-cum-V Additional District Judge, Tirupati. lA NO: 2 OF 2024 Petition under Section 151 CPC & under order 41 Rule 5 of CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the Interim Orders Dt. 24/10/2024 in CMA 676/2024 and as extended and to dismiss the present Civil Miscellaneous Appeal with exemplary costs, in the interest of justice. Between: Vivid Hotels and Resorts Pvt Limited, Rep by its Managing Director Konda Radhakrishna, Aged about 65 years, Occ; Business, Office at; Flat No. 102, Sravanthi Apartments, Mogalarajapuram Road, Vijayawada - 10, Krishna District. ...Petitioner/Respondent No.1 AND 1. A. Venkata Subbaiah S/o A. Venkata Subbaiah, Aged about 51 Years, presently residing at Flat No. 108, 1st Floor, Sri Radha Gov da Residency, Upadhyaya Nagar, Tirupati Post and Town, Tirupati District. ...Appellant/Petitioner/Defendant 2. Kanchana Roopa Viswanath S/o Kanchana Subbanna, Aged about 53 Years, Occupation; Business, R/o. Flat No. 304, B-Block, Swetha Residency, bearing D.No.18-1-137, Railway Colony extension, Tirupathi Town and Mandal. ...Respondent No. 2 Counsel for the Appellant: SRI O. MANOHAR REDDY, Senior Counsel for M/S O M R LAW FIRM Counsel for Respondent No.1: SRI UNNAM SRAVAN KUMAR Counsel for Respondent No.2: SRI RAVINDRA NAGOLU CIVIL MISCELLANEOUS APPEAL NO: 683 OF 2024 Appeal Under order 43 Rule 1 of CPC, against the Order dated 16- 10-2024 in E.A. No. 138 of 2024 in E.A. No. 384 of 2022 in E.P. No. 26 of 2017 in O.S. No. 215 of 2011 on the file of Court of the Judge, Family Court - cum - V Additional District Judge, Tirupathi. Between: H Saji Srinivasa Raju, S/o Late S. Bangaruraju, Aged about 51 years, Occ; Retd employee, R/o D. NO. 18-4-162, 5^^ cross. Railway Colony, Tirupathi, Tirupathi district. ...Appellant /Petitioner AND 1. Vivid Hotels and Resorts (Pvt.) Limited, Rep. by its Managing Director, Konda Radhakrishna, S/o. Konda Lakshmaiah, aged about 62 business. Flat No.2, Sravanthi Apartments, Mogalarajapuram Road, Vijayawada-10, Krishna District, A.P. (Decree Holder) 2. Kanchana Roopa Viswanath, S/o. Kanchana Subbanna, Hindu, aged about 50 years, residing at Flat No. 304, B-Block, Swetha Residency, bearing D.No. 18-1-137, Railway Colony Extension, Tirupati Post & Town, Tirupati District. (Judgment Debtor). years. ...Respondents/ Respondents lA NO: 1 OF 2024 Petition under Section 151 CPC & under order 41 Rule 5 of CPC, praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further EP.No.26/2017 on the file of the Judge, Family Court-cum-V Additional District Judge, Tirupati. in Counsel for the Appellant: SRI HARINATH REDDY SOMA Counsel for the Respondent No.1: SRI UNNAM SRAVAN KUMAR Counsel for the Respondent No.2: SRI RAVINDRA NAGOLU CIVIL MISCELLANEOUS APPEAL NO: 684 OF 2024 Appeal under Section 43 Rule 1 of CPC, against the order of the Judge, Family Court - cum - V Additional District Judge, Tirupati passed in EA.No. 139/2024 in EA.No.402/2022 in EP.No.26/2017 in OS.No.215/2011 dated 16.10.2024 Between; Gurramkonda Prakash, S/o Late G. Chengaiah, Aged about 61 years, Occ: employee, R/o H. No. 3-145-8-B-7-15, 8th cross, Prasanthi Nagar, Near Gnanodaya School, Madanapalli, Chittoor District. ...Appellant/Petitioner AND 1. Vivid Hotels and Resorts (Pvt.) Limited,, Rep. by its Managing Director Konda Radhakrishna, S/o. Konda Lakshmaiah, aged about 62 business. Flat No.2, Sravanthi Apartments, Mogalarajapauram Road, Vijayawada-10, Krishna District, A.P. (Decree Holder) years 2. Kanchana Roopa Viswanath,S/o. Kanchana Subbanna Hindu, aged about 50 years, residing at Flat No. 304, B-Block, Swetha Residency, bearing D.No. 18-1-137, Railway Colony Extension, Tirupati Post and Town, Tirupati District. (Judgment Debtor) ...Respondents/Respondents lA NO; 1 OF 2024 Petition under Section 151 CPC & under order 41 Rule praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to stay all 5 of CPC,. further in EP.No.26/2017 cum - V Additional District Judge, Tirupati, pending disposal of the petition Counsel for the Appellant: SRI HARINATH REDDY SOMA Counsel for Respondent No.1: SRI UNNAM SRAVAN KUMAR Counsel for Respondent No.2: SRI RAVINDRA NAGOLU The Court made the following: on the file of the Judge. Judge, Family Court - APHC010469422024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) ■ LI [3527] WEDNESDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CIVIL MISCELLANEOUS APPEAL NOs: 676, 683 & 684 of 2024 CIVIL MISCELLANEOUS APPEAL NO: 676 of 2024: Between: ...APPELLANT A VenkataSubbaiah AND ...RESPONDENT(S) Vivid Hotels And Resorts Pvt Limited and Others Counsel for the Appellant: 1.0 MR LAW FIRM Counsel for the Respondent{S): 1.UNNAM SRAVAN KUMAR 2.N RAVINDRA CIVIL MISCELLANEOUS APPEAL NO: 683 of 2024 Between: ...APPELLANT SajiSrinivasa Raju AND Vivid Hotels And Resortspvt Limited and Others ...RESPONDENT(S) Counsel for the Appellant: 2 HBKM,J& HAHHSJ C. M.A.Nos. 676, 683 & 684 of 2024 . 1. HARINATH REDDY SOMA Counsel for the Respondent(S): 1.UNNAM SRAVAN KUMAR 2.N RAVINDRA CIVIL MISCELLANEOUS APPEAL NO: 684 of 2024 Between; ...APPELLANT Gurramkonda Prakash, AND ...RESPONDENT(S) Vivid Hotels And Resorts Pvt Limited and Others Counsel for the Appellant: 1.HARINATH REDDY SOMA Counsel for the Respondent{S); 1.UNNAM SRAVAN KUMAR 2.N RAVINDRA 3 HBKM,J& HAHHSJ CM.A.Nos.676, 683 & 684 of 2024 The Court made the following: COMMON JUDGMENT: (Per Hon’ble Sri Justice B. Krishna Mohan) Heard Sri O. Manohar Reddy, the learned Senior Counsel for the appellant and Mr. Unnam Akhil Chowdary, the learned counsel appearing for the 1®‘ respondent. 2. Heard Sri O. Manohar Reddy, the learned Senior Counsel for the appellant in C.M.A.No.676 of 2024 arising out of E.A.No.140 of 2024 in E.A.No.383 of 2022 in E.P.No.26 of 2017 in O.S.No.215 of 2011 on the file of Family Court-Cum-V Additional District Judge, Tirupati dated 16.10.2024. 3. Similarly, the C.M.A.No.683 of 2024, arises against the E.A.No.138 of 2024 in E.A.No.384 of 2022 in E.P.No.26 of 2017 in O.S.No.215 of 2011 on the file of Family Court-Cum-V Additional District Judge, Tirupati dated 16.10.2024. 4. Another C.M.A.No.684 of 2024 arises against the E.A.No.139 of 2024 in E.A.No.402 of 2022 in E.P.No.26 of 2017 in O.S.No.215 of 2011 on the file of Family Court-Cum-V Additional District Judge, Tirupati dated 16.10.2024 5. These appeals filed by the third party claimants in the above said respective E.A.s before the executing Court below in the same execution proceedings arising out of the same suit. For the purpose of convenience. we take the C.M.A.No.676 of 2024, which is filed questioning the order passed by the Executing Court in E.A.No.140 of 2024 dated 16.10.2024, dismissing 4 HBKMJ& HAHHSJ CM.A.Nos.676, 683 & 684 of 2024 the execution petition on the ground that no sufficient cause for non- appearance of the claimant on 10.04.2023 was shown. 6. The learned Senior Counsel appearing for the appellant/claimant submits that the above said Execution application was filed under Order 21 Rule 101 C.P.C. to set aside the dismissal order dated 10.04.2023 passed in E.A.No.383 of 2022 and restoration of the same in its original position for concluding the proceedings in the interest of justice. 7. He contended that on 10.04.2023, there was a reference in the Bar Association of the said Court premises and there was an understanding that the matter would not be taken up and the further time of the Court will not be taken up on judicial side. In view of the reference made by the Bar Association, though the claim petitioner came on that day for filing chief affidavit in the above said execution petition, the same could not be done due to the sudden condolence meeting in the Bar Association. With the bona fide impression that the further judicial work will not be taken up, he left the Court premises. But surprisingly as there was a dismissal order by the Court below for non-prosecution on 10.04.2023, the above said E.A. was filed for setting aside the dismissal order and restoration of the E.A. But the Court below has come to a conclusion that the claim petitioner did not produce any proof in support of his contention even by filing some third party affidavit to show that he has come to the Court on that day and left the Court premises after the 5 HBKM,J& HAHHSJ CM.A.Nos.676, 683 & 684 of 2024 reference was made. In the above said E.A., the counter was also filed by the contesting respondent No.1 herein. In the counter of the respondent No.1 also it was not categorically denied and it was only mentioned that the petitioner has to show the strict proof of the same. 8. The learned Senior Counsel appearing for the appellant submits that already there was a common order passed by this Court in C.R.P.Nos.2267, 9. 2268, 2269, 2271 and 2272 of 2023 dated 07.12.2023. In the light of the above said common order of the High Court, the Executing Court ought to have decided the E.A. filed by the appellant herein on merits instead of dismissing it for non-prosecution without giving any further opportunity. 10. On the other hand, the learned counsel appearing for the 1®^ respondent submits that the claimant/third party claimant has not approached the Court below with clean hands and he is trying to drag on the execution proceedings. The above said claim petition was filed and it was not pursued regularly and the claimant earlier also took time on number of occasions and ultimately on that particular day, the petitioner did not turn up and as such, the Executing Court dismissed the said execution application on 10.04.2023, for which, they filed the above said application for restoration of the same, without showing any sufficient cause. 11. 6 HBKM,J& HAHHS,J CM.A.Nos.676, 683 & 684 of 2024 %■ He also further submits that the claim of the appellant herein rests upon 12. the unregistered agreement of sale and it is only invented for the purpose of dragging the execution proceedings and in this case particularly, the sale certificates were already issued and as such the claim petition itself is not maintainable. He also refers to the decision of the Hon’ble Apex Court in Rahul S. Shah V. Jinendra Kumar Gandi and others^m Civil Appeal Nos.1659-60 of 2021 dated 22.04.2021, wherein it was observed that the Executing Court 13. must dispose of the execution proceedings within 6 months from the date of filing, which may be extended only by recording reasons for such delay. In reply, the learned counsel for the appellant also refers to the order of the Hon’ble Supreme Court of India arising out of the I.A.No.1 of 2024 in 14. C.M.A.No.683 of 2024 in S.L.P.No.29713 of 2024 arising out of the order passed by the another Co-ordinate Bench of this Court in I.A.No.1 of 2024 in C.M.A.No.683 of 2024 dated 29.10.2024, wherein their lordships directed to give liberty to the petitioner therein to seek the remand and restitution in E.A.No.402 of 2022 by setting aside the orders dated 10.04.2023 and 16.10.2024 before the High Court in C.M.A.No.684 of 2024 and it was further observed that, if such prayer was made by the petitioner therein, the same shall be considered by the High Court in accordance with law as expeditiously as possible. '(2021) 6 see 418 7 HBKM,J& HAHHS,J C.M.A.Nos.676, 683 & 684 of 2024 / in view of the above said facts and circumstances and upon 15. consideration of the rival submissions made, the scope of all these appeals would be only to the extent of consideration of the above said E.A.s filed by the claimants seeking restoration of the earlier E.A. filed, as they were dismissed for default vide order dated 10.04.2023. The common ground raised in all these execution applications is that in view of the reference held in the Bar Association on that day, though they came to the Court for participation in the enquiry proceedings of their claim applications, they could not do so under the bona fide impression that there would not be any further judicial work pursuant to the reference made in the Bar Association. There is no dispute with regard to the reference made and subsequent dislocation of the judicial work but the Court below observed that, the claimants/applicants did not file any supporting documents to show that they have attended the Court on that day and they left the Court after the reference was made. In the considered opinion of this Court after careful perusal of the 16. impugned orders passed by the Executing Court against which these Civil Miscellaneous appeals arise, it is to be held that the Executing Court did not consider the exact reason furnished by the claimants and dismissal of their restoration application itself appears to be not on the sound reasoning and the Court below ought to have given one more opportunity to proceed with the conducting of enquiry in the execution proceedings by considering the execution applications as it was only the first time that non-appearance was 8 HBKM,J& HAHHSJ . CM.A.Nos.676, 683 & 684 of2024 happened on that particular day in view of the above said reference was made in the Court premises on account of the death of an Advocate member of the Bar Association. As stated supra, already there was an order passed by the learned Single Judge of this Court in C.R.Ps by way of common order in C.R.P.Nos.2267, 2268, 2269, 2271 and 2272 of 2023 dated 07.12.2023 and the Executing Court ought to have decided the Execution applications filed by the claimants on its own merits by giving due opportunity to oppose the by the 1®'respondent/decree holder. Instead of that, the Executing Court dismissed the above said execution application for restoration of the earlier execution applications by setting aside the default order dated 10.04.2023. 17. same For the foregoing reasons, we allow these Civil Miscellaneous Appeals to restore the execution applications filed by the appellants by setting aside the default order dated 10.04.2023 in all these matters. We further direct the Executing Court to decide the applications in a time-bound manner as expeditiously as possible within a period of three (03) months from the date of receipt of this order by giving due opportunity to both the parties to decide the matter. The appellants shall deposit Rs.5,000/- costs in respect of each E.A for setting aside the default order, payable to the 1"* respondent/decree holder and the same shall be paid to the credit of the above said Execution Petition within a period of four (04) weeks from the date of receipt of this order. 18. 9 HBKMJ& HAHHSJ CM.A.Nos.676, 683 & 684 of 2024 19. Accordingly, these Civil Miscellaneous Appeals are allowed. There shall be no order as to costs. As a sequel, Interlocutory Applications pending, if any, shall stand closed. Sd/- S.V.S.R.MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER J 1. The Judge, Family Court - cum - V Additional District Judge, Tirupati, Chittoor District [with records] 2. One CC to M/S O M R LAW FIRM, Advocate [OPUC] 3. One CC to Sri Harinath Reddy Soma, Advocate [OPUC] 4. One CC to Sri Unnam Sravan Kumar, Advocate [OPUC] 5. One CC to Sri Ravindra Nagolu, Advocate [OPUC] 6. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravati 7. Three CD Copies To MV sree HIGH COURT DATED: 05/03/2025 COMMON JUDGMENT CMA.No’s.676, 683 & 684 of 2024 ^ 2tMA«2«25 ^ . Current Section ^N<s,^SPATCV‘;^I^^ ALLOWING THE CIVIL MISCELLANEOUS APPEALS WITHOUT COSTS